What is a letter of concern?

A letter of concern is a document given by an employer to an employee essentially explaining that the employee has fallen short of what is required, and improvement is needed. Sanctions are not imposed on the employee as a result of the letter of concern and therefore a disciplinary hearing is not needed.

Why would an organisation use a letter of concern?

A letter of concern may be used when the error does not warrant formal disciplinary action to be taken. The purpose of such an approach is to alert the employee that their actions fell short of what was expected in the circumstances, and it is hoped that after such a prompt the employee will improve without the need for further action to be taken.

What are the advantages of using a letter of concern?

1. Improvement could be achieved quickly after receiving a letter of concern

Receiving a letter of concern may prompt a swift change in the employee’s behaviour or an improvement in performance, due to a desire to meet the required standards. If this does occur there is no need for further action as things are back on track.

 

2. A letter of concern potentially reduces the resources needed to resolve the situation

Undertaking the tasks associated with  a disciplinary process can be time-consuming in order to be done effectively, and may well require the involvement of a number of people within the organisation. For example, people to undertake the investigation, witnesses, and those on the disciplinary panel, if the matter goes that far. As referred to above, as well as the potential number of people involved there is also the time required on tasks such as undertaking the investigation, planning for the disciplinary hearing and undertaking the disciplinary hearing itself.

A letter of concern could remove the need for the steps referred to above, although some investigation is likely to be needed, before a letter of concern is issued, in order to establish what happened.  

 

3. Using a letter of concern potentially indicates that an employer is acting reasonably

Going through a formal disciplinary process is likely to be an ordeal for the employee. Dealing with the situation in a way that avoids that indicates that the organisation takes the welfare of employees seriously by considering other options before embarking on a more extreme course of action.

 

What are the disadvantages of using a letter of concern?

 

1. Further action may be needed despite the letter of concern

It may be that the letter of concern has not had the desired effect. In which case it would be necessary to go down the formal route anyway.

 

2. Confusion can result in a letter of concern being used incorrectly

 

There is often confusion about what a letter of concern is and how it should be used. For example, what information should it contain? How long should it remain ‘on file’ ? Can a letter of concern be taken into account if the situation escalates?  There needs to be an understanding of the document and what it can (and what it cannot) achieve.

 

3. Using a letter of concern incorrectly may have legal implications

Perhaps, there is an  misconception that a letter of concern means that an employer can take disciplinary action without the need to follow any other procedures. This view is incorrect and could have serious consequences. If dismissal occurred, and the employee had a sufficient length of service, the employee could bring a claim for unfair dismissal. Alternatively, if sanctions were imposed without procedures being followed, the employee could leave and potentially make a claim for constructive dismissal.

5 tips when using a letter of concern

 

1. Get professional advice

 

Having professional advice will ensure that any documentation is drafted correctly, and guidance is available regarding how it should be used. It may be useful for those who are managing employees to have training to avoid the pitfalls referred to above.

2. Remember that there is still a need to know what happened

 

It is common for employers to think that, because the formal disciplinary process is not being used, there is no need to find out what happened. This approach would be a mistake. After all, if the employee was not responsible for the issue in question a letter of concern is likely to do more harm than good.

3. Look at procedures as a whole

 

If the employee has fallen short of what is expected how did that happen? For example, are there regular performance reviews so that the employee knows what is required? If the issue related to behaviours, does the organisation have policies and procedures in place setting out what is (and what is not) acceptable?

 

4. Follow procedures

 

It is common for disciplinary procedures, for example, to say that issues will be tackled informally where appropriate, such as where the issue was minor. It is important to ensure that employees are treated in a way that is consistent and fair.

 

5. Consider next steps

 

There is little point in issuing a letter of concern if no steps are taken to monitor, and act on, what happens next. It is important to see a letter of concern as simply a tool which may bring about improvement. In order to know whether it has worked it is necessary to have measures in place to effectively monitor performance.

Plotkin and Chandler works exclusively in the areas of HR and employment law and support both employers and individuals.

If you are an employer, we offer HR consultancy whereby we advise on issues or undertake tasks on behalf of your organisation, such as attending meetings or drafting documentation. We also provide HR training where we answer the questions above as well as many others. We offer HR training on an extensive range of topics such as how to undertake disciplinary investigations, performance management etc. If you anticipate that a situation may escalate into an Employment Tribunal claim, or you need assistance with defending an Employment Tribunal claim, we can help.

If you are an employee who is going through a disciplinary process, you have been told that your performance needs to improve, and want to know what action you should take, we can help. If you have been dismissed, and feel that the decision was unfair, we can advise you on next steps.

To discuss your requirements, and the ways in which we can help, call us on 020 3923 8616 or email us at info@plotkinandchandler.com